The opinion
CLARK, Circuit Judge
(dissenting).
This case well illustrates the rigidity of decision forced upon us by a quite literal application of the doctrines of Erie R. Co. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 , 114 A.L.R. 1487 , and suggests once again that litigants to whom a choice of forum is open should think twice before turning their backs upon state tribunals that are free to determine what the law is or *901 should be, to come to us who are bound by particular and often unclear, isolated precedents. 1 Here, were it not for a recent case —Cohen v. Bartgis Bros. Co., supra, turning entirely upon pleading niceties — we should all “think it clear” that “it has long been firmly established by New York cases” that an agreement of the kind here proven was not within the statute of frauds. All that the Cohen case actually does is to refuse to foreclose, before trial, a defense which I think we must all admit was quite pertinent and, at least potentially and possibly, well taken in the situation there under consideration. In federal practice, indeed, the defense would have been allowed at that stage of the case with hardly an argument, and the absence of federal interlocutory appeals would have prevented the result from being frozen into a formal and doubtful precedent, as has unfortunately happened under the state practice.
In the Cohen case, the plaintiff had alleged that he was employed by defendant in April, 1933, as a salesman upon commission, with a special agreement to receive commissions upon all orders placed by one particular company, whether or not he was in defendant’s employ at the time, that his employment continued until December 31, 1940, and that he was entitled to certain commissions upon orders placed both before and after this latter date. The court undoubtedly had in mind that the contract depended entirely upon the nuances of oral testimony, considered in the light of the obviously long-time nature of the arrangement as contemplated and indeed actually had. Under the circumstances it would have been harsh to have ruled, in advance of hearing the testimony, that a jury could not find the contract one which required the defendant to perform for an unlimited period of time (as Mr. Justice Untermyer viewed it in the Appellate Division) or that, in the contemplation of the parties, it was intended to last for more than a year. At any rate, all that the Court of Appeals held in its “memorandum decision,” 289 N.Y. 846 , 47 N.E.2d 443 , was that the defense as pleaded was “sufficient in law on the face thereof,” i. e., was not demurrable. The decisions of Justice Hecht in Steiner v. Fenster, supra, and of Justice Coleman in Deucht v. Storper, City Ct., 44 N.Y.S.2d 350 , distinguishing this case and holding contracts for commissions for the duration of the war, or of employment so long as workers trained by the plaintiff were retained by the employer, to be without the statute, show that learned state judges think the earlier authorities have not been repudiated; and I believe that should be our conclusion.
Strictly speaking, the Tompkins case does not govern, for in spite of the now lioary antiquity of the statute of frauds, technically it appears here as only a local statute. I suggest, however, that until that case, we should never have construed a more decision upholding the sufficiency of a pleading for trial as repudiating a statutory construction theretofore well settled in New York, as well as generally.